


( : .6th Congress'! 
1st Session / 

SENATE 

/ Document 
\ No. 131 


RATIFICATION OF 



CONSTITUTIONAL AMENDMENTS 


OPINION OF THE 

Supreme Court of the State of Washington 
In the Case of State ex rel. Mullen v. Howell 
As delivered on May 24, 1919 

Bt I v iiv 



PRESENTED BY MR. GORE 
October 13, 1919— Ordered to be printed 


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GOVERNMENT PRINTING OFFICE 
1919 

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RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


State Ex Rel. Mullen v. Howell, Secretary of State. 

[No. 15313. Supreme Court of Washington. May 24, 1919.] 

1. Statutes—Referendum—Construction of constitutional amend¬ 
ment: Constitutional amendment 7, article 2, section 1, providing for 
a referendum in all cases “ except such laws as may be necessary for 
the immediate preservation of the public peace, health, or safety, 
support of the State government and its existing public institutions,” 
by specifying the things not reserved, is an expression of a reserva¬ 
tion to pass upon all things not so specified. 

2. States—Police powers of States—Federal interference: The 
Federal Government has no power to control the police power of the 
States, except as such power may have been expressly granted or as 
it may be necessary to maintain the acknowledged powers of the 
Federal Government. 

3. Constitutional law—Validity of statutes: A law will not be held 
unconstitutional if it is within the spirit of the policy enunciated 
by the constitutional provision under consideration. 

4. Constutional law—Amendment to United States Constitution— 
Resolution of legislature—Referendum—■“ Law”: Under the consti¬ 
tutional amendment 7, article 2, section 1, providing for referendum 
of “ acts, bills, or laws,” joint resolution of State legislature ratifying 
constitutional amendment for national prohibition proposed by 
resolution December 19, 1917 (40 Stat, 1050), is subject to referen¬ 
dum, the amendment to the United States Constitution being a law 
within the seventh amendment of the State constitution. 

{Editor’s note: For other delinitions, see Words and Phrases, first and second 
series, Law.] 

5. Constitutional law—United States Constitution—Amendment— 
Method of ratification: The authority to act in the matter of a 
proposed amendment to the Constitution of the United States does 
not arise in or out of the constitution of the State, but arises out of 
the Federal Constitution; and any act, whether by resolution or bill, 
on the part of the State legislature, is a sufficient expression of the 
legislative will, unless Congress itself challenges the method or 
manner of its adoption. 

.6. Constitutional law—United States Constitution—Amendment— 
Legislative and judicial powers: In mandamus to compel submission 
of joint resolution ratifying amendment to United States Constitu¬ 
tion, the contention that the legislature has no power to act by reso¬ 
lution is non justiciable, the power to question the manner of adoption 
being in Congress, and not the courts. 

7. Constitutional law—United States Constitution—Amendment— 
Ratification: Congress has no concern of the manner in which the 
people of the several States pass upon proposed amendments to the 
United States Constitution. 


3 



4 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


8. Constitutional law—Amendment to United States Constitu¬ 
tion—Referendum—“Legislature”: Constitution of United States. 
Article V, providing that proposed amendment shall be valid “ when 
ratified by the legislatures of three-fourths of the several States, or 
by conventions in three-fourths thereof,” does not preclude submis¬ 
sion of joint resolution of State legislature ratifying proposed 
amendment to a referendum, the words “ legislatures ” and “ con¬ 
ventions” not having present-day meanings, the former referring 
to legislative authority, including all its branches, and not merely 
the legislative assembly. 

[Editor’s note: For other definitions, see Words and Phrases, first and 
second series, Legislature.] 

9. States—Federal Constitution—Reservation of powers—To 

States: Constitution of United States, amendment 10, providing 
that “ The powers not delegated to the United States * * * are 

reserved to the States, respectively, or to the people,” is a declara¬ 
tion that the people of the several States may function their legis¬ 
lative power in their own w T ay, especially in view of the ninth 
amendment. 

Parker, Mitchell, Tolman, and Fullerton, JJ., dissenting. 

En Banc. 

Mandamus by the State of Washington, on the relation of Frank 
P. Mullen, against I. M. Howell, secretary of state of the State of 
Washington. Writ ordered to issue. 

P. C. Sullivan, of Tacoma; John F. Murphy, of Seattle; and Tur¬ 
ner, Nuzum & Nuzum, of Spokane, for appellant. 

L. L. Thompson and Glemi J. Fairbrook, both of Olympia, for 
respondent. 

Chadwick, C. J.: At the general election held in 191*2 the people 
of the State of Washington adopted as a principle of government 
the power to initiate laws, and to review at the bar of popular 
opinion all acts, bills, or laws passed by the legislature of the State 
of Washington. 

[1] The right so to do is emphasized as a power reserved, and the 
terms of the amendment imply in the strongest possible way that 
the intention of the people was to reserve a right to review* every 
act of the legislature which might affect the people in their civil 
rights, or limit or extend their political liberties; for they v T rote 
an exception, saying that a referendum may be ordered in all cases 
“ Except such laws as may be necessary for the immediate preser¬ 
vation of the public peace, health, or safety, support of the State 
government and its existing public institutions.” (Amendment 7, 
art. 2, sec. 1.) The writing of an exception specifying the things 
not reserved is an expression, within sound rules of construction, 
of a reservation to pass upon all things not so specified. 

The court in passing directly upon the amendment, and in other 
cases arising under city charters, has held firmly to the principle 
of the referendum, and has consistently refused to limit it by con¬ 
struction. 

In December, 1917, Congress proposed an amendment (Res. Dec. 
19, 1917, 40 Stat., 1050) to the Federal Constitution, providing that: 

Section 1. After one year from tlie ratification of this article the manufac¬ 
ture, sale, or transportation of intoxicating liquors within, the importation 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


5 


thereof into, or the exportation thereof from the United States and all terri¬ 
tory subject to the jurisdiction thereof for beverage purposes is hereby pro¬ 
hibited. 

Sec. 2. The Congress and the several Slates shall have concurrent power to 
enforce this article by appropriate legislation. 

Sec. 3. This article shall be inoperative unless it shall have been ratified as 
an amendment to the Constitution by the legislatures of the several States, as 
provided in the Constitution, within seven years from the date of the submis¬ 
sion hereof to the States by the Congress. 

[2] It will be noted that the amendment does not pertain to mat¬ 
ters within the original concept of the Constitution, to the definition, 
ob- distribution of powers of public officers, but by its terms assumes 
to cover matters that are purely legislative, and which have hitherto 
been a subject of legislation by the several States under the police 
power. We understand that the Federal Government has no power 
to control the police power of the States except as such power may 
have been expressly granted, or as it may be necessary to maintain 
the acknowledged powers of the Federal Government. 

This amendment was submitted to and ratified by the Legislature 
of the State of Washington by joint resolution passed January 13, 
1919. On March 20, 1919, relator tendered a petition for a referen¬ 
dum to the respondent secretary of state; he asked that it be filed 
and a ballot title be supplied. Respondent refused to receive it upon 
the grounds (a) that the amendment having been adopted b} T a 
joint resolution, and not by an act, bill, or law, it w T as not within the 
terms of the seventh amendment ; and (b) that it was not a subject 
for referendum under Article V of the Constitution of the United 
States. 

Addressing ourselves to the first contention of the respondent, Is 
the resolution an act, bill, or law within the meaning of those terms 
as employed in our Constitution—whether the people intended an 
act, bill, or law to be statutes enacted by the legislature, or whether 
they meant action by the legislature which affected them as law ? 

[3] No cases have been cited, and we may confidently say that 
there is none, holding to a rule of strict construction where the 
power of the whole people is in question. It is a rule, become axio¬ 
matic, by long-continued reiteration, that no court will hold a law to 
be unconstitutional unless such holding is compelled; that a law will 
not be held to be unconstitutional by construction; that is to say, 
the power of the legislative body, or the people if exercising that 
function will not be abridged by the courts, or suffered to be 
abridged by others, if the thing sought to be done is within the 
spirit of the policy enunciated in the provision under consideration. 
To this end the courts of the country have so addressed themselves 
that, without resort to the tedium of limitless authority, we may 
well adopt the language of Judge Cooley, who was an acknowledged 
master in the field of constitutional law, that constitutional provi¬ 
sions must be interpreted with reference to— 

the times and circumstances under which the State constitution was formed— 
the general spirit of the times and the prevailing sentiments among the people. 
Every constitution has a history of its own which is likely to he more or less 
peculiar, and unless interpreted in the light of this history, is liable to he 
made to express purposes which were never within the minds of the people 
in agreeing to it. (People v. Harding, 53 Mich., 48; 19 N. W., 155; 51 Am. 
Rep., 95.) 

The safe way is to read its [the Constitution’s] language in connection with 
the known condition of affairs out of which the occasion for its adoption may 


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11ATIFICATI0N OF CONSTITUTIONAL AMENDMENTS. 


have arisen, and then to construe it, if there be therein any doubtful expres¬ 
sions, in a way, so far as is reasonably possible, to forward the known pur¬ 
pose or object for which the amendment was adopted. (Maxwell v. Dow, 176 
U. S., 581, 602; 20 Sup. Ct., 448, 456 (44 L. Ed., 597).) 

The courts are not bound by mere forms, nor are they to be misled by mere 
pretenses. They ate at liberty—indeed, are under a solemn duty—to look to 
the substance of things, whenever they enter upon the inquiry whether the 
legislature has transcended the limits of its authority. (Mugler v. Kansas, 
123 U. S., 623, 661; 8 Sup Ct., 273, 297 (31 L. Ed., 205).) 

The people, too, have directly charged us with a duty to be mind¬ 
ful of their sovereign rights. 

A frequent recurrence to fundamental principles is essential to the security 
of individual rights and the perpetuity of free government. (Constitution of 
State of Washington, art. 1, sec. 32.) 

Wherefore the purpose of the people in adopting the seventh 
amendment is a proper subject to be considered. Did they intend 
to grant any exceptions other than those enumerated in the seventh 
amendment? If this were an ordinary case of statutory construc¬ 
tion, we have no doubt that we could all agree that we would look 
first to the old law, the mischief, and the remedy. It is more im¬ 
portant in considering a question involving, first of all, the 
sovereign rights of the citizen—the right to speak ultimately and 
finally in matters of political concern—that we should measure the 
power reserved by the former condition. 

It is well known that the power of the referendum was asserted 
not because the people had a willful or perverse desire to exercise the 
legislative function directly, but because they had become impressed 
Avith a profound conviction that the legislature had ceased to be 
responsible to the popular will. They endeavored to, and did— 
unless we attach ourselves to words, and words alone, reject the idea 
upon which the referendum is founded, and blind ourselves to the 
great political movement that culminated in the seventh amend¬ 
ment—make reservation of the power to refer every act of the legis¬ 
lature, with only certain enumerated exceptions. 

Guided by these considerations, we are satisfied that the people 
used the words “act, bill, or law” in no restricted sense, but in a 
sense commensurate with the political evil they sought to cure. 

[4] And why should not the amendment be a law within the mean¬ 
ing of the seventh amendment? No reason is assigned other than 
that “ law ” as there used is synonymous with “ bill ” or “ act.” We 
may well argue, and be within sound rules, that if the people had 
so intended they would not have used the word “law ” at all, as was 
done in the State of Oregon. We can conceive of no more sweeping 
law than the proposed amendment. Certainly no amendment has 
ever been proposed that goes deeper into the vitals of the American 
idea of government. It surrenders pro tanto the sovereignty of the 
State, gives to the Federal Government a right to enact laws and 
to enforce them through the Federal courts, and it will deny the citi¬ 
zen the protection of some of those guaranties that we have written 
out of the travail of time into our own Bill of Rights. Upon con¬ 
struction we hold that the amendment to the Constitution of the 
United States is a law, within the meaning of the seventh amend¬ 
ment, and is subject to referendum. 

But it is contended that, whereas the legislature ratified the amend¬ 
ment by joint resolution instead of by act of bill, as it might have 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


7 


done, the resolution, being not eo nomine an act, bill, or law, is not 
subject to a referendum. This argument defeats itself, for if we 
are to 'be literal and exact in terminology, and so insistent upon 
u scholastic interpretation ” as to admit this premise, we must hold 
that the legislature had no power to ratify the amendment except 
by act or bill; for we find no power granted in the Constitution to 
that body to act in matters legislative other than by act or bill. 

Ibis reasoning would lead to two consequences, equally absurd: 
hither the amendment being ratified by resolution, the act of ratifi¬ 
cation is void as a thing done in a manner not provided; or, if sus¬ 
tained, would permit the legislature to defeat the power of referen¬ 
dum by acting, in matters purely legislative, by resolution instead 
of by bill. The latter is the consequence in the instant case if the 
argument of the learned Attorney General is to be sustained. But 
we are not put to the extremity of holding that the legislature may 
not in matters of ratification act by resolution, for there is a high 
road of reason leading down to a true result. 

The contention that a resolution, although it may have the force 
and consequence of a formal legislative enactment, and affect the 
people in their civil and political rights, can not be referred, arises 
from a misconception of the term. This case sounds in fundamen¬ 
tals, not in definitions. It is not the resolution, but the act of the 
legislature in adopting it, that is to be referred. A resolution, like 
all acts of the legislature, is to be measured by the end accomplished. 
It is true that we have no provision in our Constitution providing 
for the passage of resolutions even in the formal matters in which 
the legislature has throughout the entire history- of our Territory-, 
and State been wont to act, but it is just as evident that there is no 
limitation upon the power of the legislature to act by resolution. 

The constitutions of some of the States and the Constitution of 
the United States (sec, 7, Art, I) permit or recognize the practice 
of acting by resolution, and some of them limit its uses. It has been 
held if the Constitution is silent, as ours is, that legislation can not 
be effected by that method. (Boyers v. Crane, 1 W. Va„ 176; State 
ex rel. Attorney General v. Kinney, 56 Ohio St., 721, 47 N. E., 569; 
Barry v. Viall, 12 K, I., 18.) 

[5J And were we considering a matter involving private right, 
arising in or out of the laws of this State, we could not question the 
authorities just cited; but they are not applicable for the reason 
that the authority to act in the matter of a proposed amendment to 
the Constitution of the United States does not arise in or out of 
the constitution of the State, but arises out of the Federal Consti- 
tion, and any act, whether it be by resolution or by bill, on the 
part of the State legislature must be held to be a sufficient expres¬ 
sion of the legislative will, unless Congress itself challenges the 
method or manner of its adoption. It is upon this principle that 
the Supreme Court of the United States has held that the question 
whether the referendum does violence to the Constitution of the 
United States is non justiciable, holding that the question whether 
it deprives the government of a State of its representative char¬ 
acter, thus violating the guaranty of a republican form of govern¬ 
ment, is a question for Congress and not for the courts. 

[6] The power to question the manner of adoption being in Con¬ 
gress, and not in the courts, the contention that the legislature has 


8 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


no power to act by resolution in nonjusticiable, but this holding does 
not foreclose an inquiry as to the legislative character of the thing 
done. 

It may be that my argument is not entirely clear. If so, we may 
profitably resort to an illustration. The people of the State of Wash¬ 
ington have, by expression of their reserved right to legislate upon 
all proper subjects of legislation, declared the policy of this State 
to be against the barter and sale of intoxicating liquor within the 
State, and by subsequent laws that we, as citizens of a sovereign 
State, are opposed to the use of intoxicating liquor by any of our 
citizens. The original law, by its accretions, has become what is 
popularly called, in the nomenclature of the Anti-Saloon League, 
“ bone dry.” This the people did of their own free will and accord 
and by the assertion of a hitherto unused power. Let the question 
occur, Can their act be undone by any plan, power, or authority less 
or other than the power that established the present state of the 
law? Keeping in mind our present “ bone-dry ” condition, or plight, 
if that term be preferred, suppose the Congress of the United States 
should propose an amendment to the Federal Constitution providing 
that it shall hereafter be lawful to ship and sell in all of the States 
of the Union wines and beers containing not to exceed a certain 
minimum of alcohol—that it has the power so to do will not be 
denied; then suppose that the State legislature did by resolution, as 
in the present instance, ratify the amendment, and that it was rati¬ 
fied by a sufficient number of States only, including our own, to meet 
the demands of the Federal Constitution. We would then have a 
Taw that was not a law before; that would wipe out pro tanto the pres¬ 
ent law; that would work such an exception to it that, so far as the 
policy of our citizens had been expressed by their direct vote, would 
defeat its purposes. In such event—and it is a reasonable postu¬ 
late—would it be urged for one moment that the people of this State 
could be denied a right of referendum to determine for themselves, 
under their reserved powers, whether they desired their own law 
to be thus overcome? Would they have to stand by helplessly while 
the fruits of their victory were swept away and their sovereignty 
surrendered in degree by resolution of the legislature? 

I opine that we would find some way to declare that the right to 
refer the matter to the people, who had theretofore exercised their 
reserved power upon the very subject of the proposed legislation, 
could not be thus defeated. It is no argument to say that a referen¬ 
dum in that event would operate to promote a good cause, while this 
demand comes from those who would defeat all liquor legislation. 
We are here to declare the law, not to maintain or defend policies; 
and it is enough to saj^ that the relator is within the law as declared 
by the whole people, and as such his right should not in conscience be 
denied. We can not fit a rule to meet a particular case; it must 
apply to all alike, whatever the cause and whatever the character of 
those who invoke it. 

The final and. as we believe, the principal ground of opposition is 
that the amendment, being submitted under Article V of the Con¬ 
stitution of the United States, is a Federal question in the sense that 
State laws and State constitutions have no bearing upon or relation 
to the issues. 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


9 


It is argued that inasmuch as Article V of the Constitution of the 
United States provides that a proposed amendment “shall be valid, 
to all intents and purposes, as part of this Constitution, when ratified 
by the legislatures ot three-fourths of the several States or by con¬ 
ventions in three-fourths thereof,” etc., the people have hitherto 
fixed the manner and form of ratification, against which the reserved 
power of the people of a sovereign State may not prevail. If we are 
to stand upon the word “ legislatures if that word, and that alone, 
is the Alpha and Omega of our inquiry, it follows that the contro¬ 
versy is at an end: but we are cited to no instances where a great 
question involving the political rights of a people has been met 
by such technical recourse; where any court has so exalted the letter 
or so debased the spirit of the law. 

In Noble State Bank v. Haskell (219 IT. S., 101. 31 Sup. Ct., 186, 
55 L. Ed., 112, 32 L. B. A. (N. S.), 1062, Ann. Cas., 1912A, 4871 
Justice Holmes frowned upon a like invitation, saying: 

We must he caution '• about pressing the broad words of the fourteenth amend¬ 
ment to a dryly logical extreme. Many laws which it would he vain to ask 
the court to overthrow could he shown, easily enough, to transgress a scholastic 
interpretation of one or another of the great guaranties in the Bill of Rights. 
* * * Judges should be slow to read into the latter [the Constitution of the 

United States] a nolumus mutare as against the lawmaking power. 

[7] It may be set down as a truism that the Congress of the United 
States has no concern of the manner in which the people of the sev¬ 
eral States pass upon the proposed amendments. It is the act of 
ratification or rejection by the legislative power in a State, and not 
the manner of doing, that makes for the result to be accomplished. 

It may be true that it might have been provided that amendments 
could be made directly by Congress, and the submission of amend¬ 
ments for ratification or rejection by the legislatures of the several 
States at all was a matter of grace upon the part of the whole people 
when the Constitution was adopted; but we would incline to the 
opinion that the right to pass upon proposed amendments should be 
treated as a reservation in the several States of the right to express 
their legislative will in the manner in which they had then provided, 
or might thereafter provide, and, when so regarded, as a compact 
between the States and the Federal Government. 

It is provided in the Federal Constitution that proposed amend¬ 
ments shall be ratified by the legislatures of the States or by con¬ 
ventions assembled for the purpose of considering them. It can not 
be urged successfully that the framers of the Constitution used the 
words “ legislatures ” and “ conventions ” as terms describing then 
present institutions, for it is well known that at the time the Con¬ 
stitution was adopted some of the States did not have legislative 
assemblies. 

Article 5 can mean no more than this: That no amendment shall 
be adopted unless it is sanctioned by the supreme legislative power 
of a sufficient number of the Commonwealths, whether such ratifica¬ 
tion be by legislative assembly, conventions, or such other method as 
might thereafter be adopted by the people in the several States. 

[8] If we hold that the words “legislatures” and “conventions” 
do not control the plain purpose and spirit of Article V—that is, 
Unit the people shall pass upon a proposed amendment by their 
representatives, if that be the plan provided by them at the time 


10 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


of its submission, or, if not, under such other plan of expressing* 
their will as may not be offensive to the Federal Constitution—we 
are on solid ground. For the framers of the Constitution had well 
in mind—for they had lived in that time when our political system 
was being fashioned into concrete form—they understood, as we 
sometimes forget, that “ the theory of our political system is that 
the ultimate sovereignty is in the people, from whom springs all 
legitimate authority.” (Cooley, Constitutional Limitations, 6th ed., 
p. 39.) Wherefore it may be said that it is the meaning and in¬ 
tent of Article V that an amendment to the Constitution of the 
United States shall not become effective until it has been ratified 
b;\ the legislative authority of a sufficient number of the States, and 
it should not be held that a ratification or rejection by a popular 
vote, under the referendum clause of a State constitution, would be 
contrary to the provisions of Article V unless it can be said, under 
sound rules of construction, that the referendum is offensive to the 
Constitution of the United States. 

The people of several of the States, having the sovereign right 
of self-government, excepting only as they may have yielded that 
right under the Constitution of the United States arid its amend¬ 
ments, have adopted the referendum as a rule of government, and 
the only objection that has ever been urged, or that could have been 
urged, against it, is that it violates section 4, Article IV, of the 
Constitution, guaranteeing to every State a republican form of gov¬ 
ernment. The Supreme Court of the United States has held that 
it does not so offend. (Pacific States Telephone & Telegraph Co. 
v. Oregon* -223, IT. S., 118: 32 Sup. Ct„ 224; 56 L. Ed. 377.) 

The fault of disassociating a word or correlative words from the 
text of a written law, and promising a judgment without the warmth 
of the spirit of that law, may be illustrated. If we are wrong, it 
may well be that a State might, and withal unwittingly, put it beyond 
its power to pass upon a proposed amendment to the Federal Con¬ 
stitution. If the people of this State, had, when they adopted the 
referendum, provided for the abolition of our legislative assembly— 
as they might have done—and had provided that all laws should 
thereafter be initiated by, and voted upon by, direct vote of the 
people, or that the legislative functions of the States should be exer¬ 
cised by a council of three, and that all their acts should be subject 
to a referendum at the next succeeding general election, it would 
follow, under the theory advanced to defeat a referendum in this case, 
that a proposed amendment could not be either ratified or rejected 
in the State of Washington, for there would be no “ legislature ” or 
“ convention ” in the sense in which those terms are employed in the 
Federal Constitution. 

Significance is placed on the word “ conventions,” it being con¬ 
tended that if the word “ legislature ” had been used alone our argu¬ 
ment might seem plausible, but the added word “ conventions” neces¬ 
sarily implies that Congress had in mind a representative body and 
not legislative authority, but we are inclined to take a broader view. 

It was doubtless intended that “legislatures” should mean one 
thing—that is, the legislative authority of the State—.and “ conven¬ 
tions ” another thing—an extraordinary representative body, con¬ 
vened by and in the State, for the sole purpose of passing upon the 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


11 


proposed amendment to the Federal Constitution. If it had no other 
intention in adopting the term “ legislatures ” in specifying one of 
the instrumentalities for passing upon the proposed amendment than 
to express the idea of legislative power, of whatever that power con¬ 
sists, then it must be deemed to mean all the branches or component 
parts of that power, which have included the qualified voters also, if 
they so desire. Inasmuch as the Constitution was formulated not 
for a day or a year, but for all time except as amended, we mav con¬ 
sider that it contemplated the same kinds of State legislative bodies 
then in existence and known to the farmers, or any other kinds of 
legislative bodies that should come into existence in the future. 

One of the important ideas governing the framers of the National 
Constitution was that amendments to that instrument should be 
ratified by the States as units, recognizing and preserving the in¬ 
tegrity and sovereignty of the States as parties to the compact 
creating and continuing that Constitution. Doubtless there was no 
other idea prevailing in providing for adoption of amendments by 
the “legislatures” or “conventions” of three-fourths of the States 
than that. Certainly it was and is of no concern to the others what 
sort of legislature any particular State has, so long as it conforms 
to the scheme of a republican form of government. 

We have preferred to meet the question upon the plane of broad 
reason, having in mind the spirit and policy of the referendum; 
but we are not without competent authority to prove that the man¬ 
ner or the name attached to the legislative power of the State, 
whether it be a representative body or the people themselves, is of 
no concern to the Federal Government. .. ^ 

In State ex rel. Schrader v. Polley (26 S. D., 5, 127 N. W., 848) 
it was contended, inasmuch as it was provided in the Federal Con¬ 
stitution (sec. 4, Art. I) that “the times, places, and manner of hold¬ 
ing elections for Senators and Representatives shall be prescribed in 
each State by the legislature thereof, * * * ” that the relator was 

entitled to have his name go upon the ballot at a general election 
under an act of the legislature, but against which a referendum 
petition had been filed. And it would seem, if the argument of the 
respondent is sound, that the prayer of the relator in that case should 
have been granted, for there the Constitution of the United States 
provided that the legislature should prescribe the times, places, and 
manner of holding elections, while in the instant case the provision 
is that the amendment shall be ratified by the legislatures. 

[9] After noting the tenth amendment to the Constitution, that 
“ the powers not delegated to the United States * * * are re¬ 

served to the States, respectively, or to the people,” which, by the 
way, is a declaration that the people of the several States may func¬ 
tion their legislative power in their own way, especially so when 
the ninth amendment, “ The enumeration in the Constitution of cer¬ 
tain rights, shall not be construed to deny or disparage others re¬ 
tained by the people,” is regarded—for the right to legislate directly 
or by representative bodies is a right assuredly retained, and, being 
retained, may be exercised in the form and manner provided by the 
people of a State—the court says: 

We are also of the opinion that the word “ legislature,” as used in section 
4, article 1, of the Federal Constitution, does not mean simply the members 
who compose the legislature, acting in some ministerial capacity, but refers 


12 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 


to and means the lawmaking body or power of the State, as established by the 
State constitution, and which includes the whole constitutional lawmaking 
machinery of the State. State governments are divided into executive, legis¬ 
lative, and judicial departments, and the Federal Constitution refers to the 
‘'legislature” in the sense of its being the legislative department of the State, 
whether it is denominated a legislature, general assembly, or by some other 
name. Under section 1, article 3, of the State constitution, it will be observed, 
the people of this State have reserved to themselves, as a part of the law¬ 
making power, the right to vote hy referendum upon any law passed by the 
legislature, with.certain specified exceptions, prior to the going into effect of 
such law. That the exceptions mentioned are “ such laws as may be necessary 
for the immediate preservation of the public peace, health, or safety, support of 
the State government or its existing State institutions.” It is clear that said 
chapter 223 is not within any of these exceptions. Under the constitution of 
this State the people, by means of the initiative and referendum, are a part 
and parcel of the lawmaking power of this State, and the legislature is only em¬ 
powered to act, in accordance with the will of the people as expressed by the 
vote, when the referendum is properly put in operation. The term “ legis¬ 
lature” has a restricted meaning, which only applies to the membership thereof, 
and it also has a general meaning which applies to that body of persons within 
a State clothed with authority to make the laws (Bouvier’s Law Die.; Web¬ 
ster’s Die.; 18 Am. & Eng. Eney., 822; 25 Cyc., 182), and which, in this State, 
under section 1, article 3, Const. S. D., includes the people. * * * 

In Baldwin v. Trowbridge (2 Bart. Contested El. Cas. 46) the majority re¬ 
port, in presenting the legal side of the controversy, shows the following perti¬ 
nent language, which meets with our approval: “ But it was argued that this 
power was by express terms left, not to the States simply, but to the legisla¬ 
tures thereof, and that this is such a limitation upon the people of the States 
that they have now power to restrict their legislatures in the exercise of this 
right, conferred upon them by the Federal Constitution; but I submit, with all 
due respect, that not only the history and object of the section under considera¬ 
tion, but the proper definition of the term “ legislature,” as therein used, show 
the fallacy of this construction. The “ legislature ” of the State, in its fullest 
and bruaaest sense, signifies that body in which all the legislative power of a 
State resides, and that body is the people themselves, who exercise the elective 
franchise, and upon their power of legislation there is no limitation or 
restriction, except such as may be found in the Federal Constitution, or such 
as they themselves may provide by the organic law of the State. 

The writ was denied. 

State ex rel. Davis v. Hildebrant (94 Ohio St., 154; 114 N. E., 55), 
is likewise to the point. The general assembly, being the represen¬ 
tative legislative body of the State of Ohio, passed an act on May 
27, 1915 (105-106 Ohio Laws, p. 474), redistricting and apportion¬ 
ing the State into several congressional districts. The State had 
theretofore by an act passed April 28, 1913 (103 Ohio Laws, p. 
568), been districted and divided. A sufficient number of the peo¬ 
ple filed a petition for a referendum of the later act. It was sub¬ 
mitted to the electors of the State, and was rejected by a majority 
of the voters. It was contended that the act of 1915 was a valid 
act, and was not a subject of referendum, because section 4, Article 
I of the Federal Constitution, provided that the times, places, and 
manner of holding elections for Members of Congress “ shall be 
Pi •escribed in each State by the legislature thereof.” The court 
put the question: 

Does the term “ legislature.” as -used in Article I. section 4. of the Federal 
Constitution, comprehend simply the representative agencies of the State, 
composed of the members of the bicameral body, or does it comprehend the 
various agencies in which is lodged the legislative power to make, amend, and 
repeal the laws of the State, including the power reserved to the people, em¬ 
powering them to “ adopt or reject any law ” passed by the general assembly 
under the provisions of section 1, article 2. of the constitution of Ohio? 


) 


RATIFICATION OF CONSTITUTIONAL AMENDMENTS. 13 

After reference to the State constitution, which is in form sim¬ 
ilar to the seventh amendment to our own, the court sa} T s: 

These various sections disclose that, while the legislative power has been 
delegated to the bicameral body, composed of the senate and house of rep- 
resentativeg, the people of Ohio have, by the aforesaid provisions of their 
constitution, determined the manner by which such legislative power may be 
exercised, under what circumstances the laws passed by it may become opera¬ 
tive without an appeal to the people, and have further imposed the conditions 
under which such laws may become operative or inoperative as they may have 
been adopted or rejected by the popular vote designated as the “referendum.” 

While Article I. section 4, of the United States Constitution, is controlling 
upon the States, in so far as it grants the legislature of the State authority to 
prescribe the times, places, and manner of holding elections, this is the quantum 
of the Federal grant. The character of the legislature, its composition, and its 
potency as a legislative body are among the powers which are, by Article X of 
said Constitution, “ expressly reserved to the States, respectively, or to the 
people.” 

Webster’s New International Dictionary defines “legislature” as follows: 
“ The body of persons in a State, or politically organized body of people, invested 
with power to make, alter, and repeal laws.” 

The Century Dictionary defines the same term as follows: “ Any body of 
persons authorized to make laws or rules for the community represented by 
them.” 

Under the reserved power committed to the people of the States by the Fed¬ 
eral Constitution, the people, by their State organic law, unhindered by Federal 
check or requirement, may .create any agency as its lawmaking body, or impose 
on such agency any checks or conditions under which a law may be enacted and 
become operative. Acting under this recognized authority, the Ohio constitu¬ 
tion, prior to the adoption of the amendment of 1912, provided that the “ legis¬ 
lative power ” of the State should be vested in the general assembly, consisting 
of a senate and house of representatives. The same provision now exists, but 
by the adoption of the amendment of 1912 the people expressly limited this 
legislative power by reserving to themselves the power to reject any law by 
means of a popular referendum. The lawmaking body, the legislature, as 
defined by the lexicographers, comprehends every agency required for the crea¬ 
tion of effective laws. It can not be claimed that • the term “ legislature ” 
necessarily implies a bicameral body. When the term was originally embraced 
in the Constitution the Legislatures of Pennsylvania, Georgia, and Vermont con¬ 
sisted of but a single house, with a second body in each called an executive 
council. These States later abolished their councils and established a legisla¬ 
ture consisting of two branches, and such is the character generally of the 
various State legislatures to-day. (1 Bryce’s American Commonwealth, p. 461, 
note.) 

The constitutional provision relating to the election of Congressmen, con¬ 
ferring the power therein defined upon the various State legislatures, should be 
construed as conferring it upon such bodies as may from time to time assume 
to exercise legislative power, whether that power is lodged in a single or two- 
chambered body, or whether the functions of the latter be curbed by a popular 
vote or its enactments approved by a referendum vote. 

This case went to the Supreme Court of the United States. 
(State ex rel. Davis v. Hildebrant, 241 U. S., 565, 36 Sup. Ct., 
708, 60 L. Ed., 1172.) That court passed the question of the power 
of the State to adopt and use the referendum as an instrument of 
legislative will “as obvious,” holding that the State law, which 
had been made subject to the referendum, was valid and operative. 
A conclusion manifestly unsound if the word “ legislature ” means 
a bicameral body, and that meaning is inflexible under the Con¬ 
stitution of the United States; for, if that were so, the States would 
have no power to prevail against it whatever the form of their 
expression may have been. 

But it is said that the Supreme Court may be unsound in that 
respect, but is sound in result, because the Congress had passed an 


LIBRARY OF CONGRESS 



14 RATIFICATION OF CONSTITUTIONAL A! 0 028 070 923 2 

act (act Aug. 8, 1911, c. 5, 37 Stat., 13) making the referendum 
a component part of the legislative authority empowered to deal 
with the election of Members of Congress. There is nothing in 
the act of Congress which “ prevents the people of a State from 
reserving a right of approval or disapproval by referendum of 
a State act redistricting the State for the purpose of congressional 
elections” (syllabus). But, if it were so, it would not avail re¬ 
spondent, for the power of the State to act comes from the Con¬ 
stitution and not from any act of Congress. To give such effect 
to an act of Congress would be to say that Congress might by 
act amend the Constitution. Chief Justice White disposed of the 
controversy when he defined the issue: 

The right to this belief was based upon the charge that the referendum 
vote was not and could not be a part of the legislative authority of the State, 
and therefore could have no influence on the subject of the law creating 
congressional districts for the purpose of representation in Congress— 

And said— 

The court below adversely disposed of these contentions, and held that 
the provision as to referendum was a part of the legislative power of the 
State. * * * As to the State power, we pass from its consideration, .since 

it is obvious that the decision below is conclusive on that subject, and make* 
it clear that, so far as the State had the power to do it, the referendum 
constituted a part of the State constitution and laws, and was contained 
within the legislative power, and therefore the claim that the law, which was 
disapproved and was no law under the constitution and laws of the State, 
was yet valid and operative, is conclusively established to be wanting in merit. 

It could not have been so held if the act of the legislature, as dis¬ 
tinguished from legislative authority, was essential under section 4. 

If that were so, the court must have denounced the referendum in 
that and all cases where the Constitution leaves a matter to the “ leg¬ 
islature,” and refused to follow the State court, for its first duty is 
to the Constitution. 

Our attention is called to an unpublished decision of the Supreme 
Court of Oregon in Hebring v. Attorney General (180 Pac., 328). 
The premise of the decision is that the reserved power of the people 
is limited to a review of “ any act of the legislative assembly,” and 
that the word “ act ” was used having in mind the exercise of the 
legislative function as outlined in the original draft of the State 
constitution, and that the word “act” did not comprehend a joint 
resolution. 

We have already demonstrated that our Constitution is more com¬ 
prehensive. The decision does not appeal to us for another reason. 

Its basis is fundamentally unsound, in that it proceeds upon the 
theory that the right of the people to legislate upon the question rests 
in the antecedent provisions of the State constitution, whereas the 
right comes from the Constitution of the United States. 

Other questions were discussed by counsel. We have considered 
them, and are agreed that they are not controlling. 

Tho writ will issue. 

Mount, Main, and Holcomb, JJ., concur. 

Mackintosh, J. (concurring) : By the adoption of the initiative 
and referendum amendment the people of this State became a part 
of the legislative branch of the State government, and all legislative 
actions, except those especially exempted, are subject to their par- 


